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Javed Anwar, A077 044 013 (BIA Dec. 30, 2013)

Javed Anwar, A077 044 013 (BIA Dec. 30, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of the respondent’s application for adjustment of status under INA 245(i) on grounds that his labor certification application (LCA), which was not filed in the state where the petitioning employer was located, was improperly filed. The decision was written by Member Edward Grant.
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of the respondent’s application for adjustment of status under INA 245(i) on grounds that his labor certification application (LCA), which was not filed in the state where the petitioning employer was located, was improperly filed. The decision was written by Member Edward Grant.

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Mahmood, G.R.

Foley & Mahmood, PC
1951 HOOVER COURT, SUITE 105
HOOVER, AL 35226
Name: ANWAR, JAVED
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leeburg Pike, Suite 2000
Falls Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel -ATL
180 Spring Street, Suite 332
Atlanta, GA 30303
A 077-044-013
Date of this notice: 12/30/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
Sincerely,
Do c t
Donna Car
Chief Clerk
williame
Userteam: Docket
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For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Javed Anwar, A077 044 013 (BIA Dec. 30, 2013)
U.S. Department of Justice
Executive Offce fr Immigation Review
Decision of the Board of Immigration Appeals
Fafls Church, Virginia 20530
File: A077 044 013 - Atlanta, GA
In re: JAVED ANWAR a.k.a. Jare Answar Bhail Gilani
I REMOVAL PROCEEDINGS
CERTIFICATION
Date:
ON BEHALF OF RSPONDENT: G.R. Mahmood, Esquire
ON BEHALF OF DHS: Randall W. Duncan
Assistant Chief Counsel
APPLICATION: Adjustment of status
DEC 3 0 2013
The respondent, a native and citizen of Pakistan, appeals fom an Immigration Judge's
decision dated January 4, 2011, denying his application to adjust his status. On May 7, 2012, the
Board remanded this case to the Immigration Judge fr a separate oral decision. On
June 24, 2013, the record was certifed back to the Board. The appeal will be dismissed.
Upon review, we afrm the Immigration Judge's decision fr the reasons stated therein. The
respondent bears the burden of proof to establish that he is eligible fr adjustment of status,
including that he is "grandfthered" fr purposes of establishing eligibility under section 245(i)
of the Act. We agree that the respondent has not met this burden. We agree that because the
respondent erroneously fled his labor cerifcation application (LCA) in Texas instead of
Georgia, where the petitioning employer was located, he is not able to establish that his
application was approvable when fled. We note that approvable when fled means that as of the
date of fling, the labor certifcation was, among other things, properly fled. 8 C.F.R.
§ 245.1 O(a)(3). "Properly fled" means, in the case of a LCA, that the application was properly
fled and accepted pursuat to the regulations of the Depaent of Labor (DOL). 8 C.F.R.
§ 245.10(a)(2)(ii), citing 20 C.F.R. § 656.21. The respondent cites several provisions fom the
applicable DOL regulations purporting to establish that the Texas Workfrce Commission
(TWC), the DOL's delegate fr processing of LCAs, lacked authority to reject his application
and cancel the initial priority date assigned to it. However, none of the cited regulatory
provisions directly addresses this question, and none overcome the clear provision in 8 C.F.R.
§ 245. I O(a)(2) that a "properly fled" LCA is one fled in accordance with DOL regulations. For
example, the respondent cites a DOL regulation addressing circumstaces where a LCA is
denied due to filure to pay a prevailing wage; that regulation clearly states that the LCA would
need to be reflled "as a new application." 8 C.F.R. § 656.2l(e). This requirement undercuts,
rather than supports, the respondent's argument.
There also is no basis, as respondent contends, fr the Board to apply nunc pro tune relief in
this case. The respondent's assertion of "agency eror" is ill-funded, as the initial LCA was
indisputably fled in the wrong offce and thus properly rejected. We also conclude that the
respondent has not established any violation of due process.
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Cite as: Javed Anwar, A077 044 013 (BIA Dec. 30, 2013)
` f
A077 044 013
Efective Jauay 20, 2009, a Imigtion Judge who gants a alien volunta departre
must advise the alien that proof of posng of a bond with the Depaent of Homeland Security
must be submitted to the Boad of Immigation Appeals within 30 days of fling an appea, ad
that the Boad wll not reinstate a perod of voluntay departue in its fnal order uness the alien
has timely submitted sufcient proof that te reuired bond has been posted. 8 C.F .R
§ 1240.26(c)(3). See Mater of Gaero, 25 I&N Dec. 164 (IA 2010). The Immigaton Judge
provided the respondent with the required advisals ad grate the respondent a 60-day
voluntary depare period, conditioned upon the posting ofa $1,500.00 bond. The record befre
the Boad, however, does not refect that the respondent submitted timely proof of having pad
tat bond. Therefre, te voluntay deparre perod will not be reinstated, ad the respondent
will be removed fom the United Staes pursuat to te Immigation Judge's aterate order.
ORER: The appeal is dismissed.
FTR ORER: The respondent is ordere removed fom the United States pursuat to
the Immigation Judge's alterte order.
2
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Cite as: Javed Anwar, A077 044 013 (BIA Dec. 30, 2013)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA
File: A077-044-013 June 21, 2013
In the Matter of
JAVED ANWAR
RESPONDENT
CHARGES:
IN REMOVAL PROCEEDINGS
Section 237(a)(1 )(B) of the Immigration and Nationality Act, as
amended, in that afer admission as a non-immigrant under Section
101 (a)(15) of the Act, you have remained in the United States for a
time longer than permitted, in violation of this Act or any other law
of the United States.
Section 237(a)(1 )(C)(i) of the Immigration and Nationality Act, as
amended, in that after admission as a non-immigrant under Section
101 (a)(15) of the Act, you have failed to maintain or comply with the
conditions of the non-immigrant status under which you were
admitted.
APPLICATIONS: adjustment of status under Section 245(i) of the Immigration and
Nationality Act and in the alternative, post-hearing voluntary
departure.
ON BEHALF OF RESPONDENT: GR MAHMOOD
Foley and Mahmood, PC
1951 Hoover Ct, Suite 105
Hoover, AL 35226
ON BEHALF OF OHS: RANDALL W. DUNCAN, ASSISTANT CHIEF COUNSEL
Office of Chief Counsel
180 Spring St, Suite 332
Atlanta, GA 30303
1
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ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a male, native and citizen of the country of Pakistan. This
matter comes before the Court as the result of a filing of a Notice to Appear on March
18, 2003, wherein the respondent was charged has having been admitted to the United
States at Washington, D.C., on or about September 14, 1996, as a non-immigrant
visitor with authorization to remain in the United States for a temporary period, not to
exceed March 13, 1997, and then the respondent remained in the United States beyond
March 13, 1997, without authorization of the Immigration and Naturalization Service.
Furthermore, it is alleged and found that the respondent was employed for wages or
other compensation from April 10, 2001, until March 18, 2003, at Marketplace 16, 3990
E. Williamsburg Road, Sandstone, Virginia, 23150, without authorization of the
Immigration and Naturalization Service.
The respondent obtained counsel and then, at a prior Master Calendar hearing
held in the Arlington Immigration Court on July 13, 2004, the respondent admitted the
five factual allegations as contained in the Notice to Appear, the two charges of
removability as set forth therein were sustained, and the respondent was found to be
removable by clear and convincing evidence in accordance with the Act. Pakistan was
designated as the country in the event an order of removal became necessary. At that
time, the respondent indicated by and through counsel that he wished to seek review of
the denial of his adjustment of status application and in the alternative, it was made
known through counsel that he would also seek voluntary departure in the alternative.
Further, the Court will note that, as previously noted in the earlier transcripts of
this case, the file has to some extent been reconstructed and the Court has gone
through and marked the exhibits to try to make the record easier to identify those
exhibits that we will talk about in just a moment.
A077-044-013 2 June 21, 2013
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The matter before the Court is on a legal issue, that being the respondent's
misfiling of a Department of Labor certification request, which was inappropriately filed
in the wrong state. It was filed in Texas Department of Labor when it should have been
the Georgia Department of Labor, and thus the Court has taken up the motion to
pretermit, which the Court notes was not responded to separately by the respondent's
counsel and ultimately resulted in the Immigration Judge signing an order granting the
motion to pretermit and placing the matter back on the Court's docket for any other relief
to which the respondent might be eligible at the prior Master Calendar hearings held in
this case. That being the matter, the Court will note that the record is as follows.
DOCUMENTARY EVIDENCE
Exhibit No. 1 is a Notice to Appear, wherein the respondent admitted and
conceded the factual allegations and charges pursuant to the Notice to Appear. The
date of that Master Calendar hearing again was July 13, 2004. The NT A was dated
March 18, 2003.
Exhibit No. 2 is a Department filing of the 1-213.
Exhibit No. 3 is the Department's motion to re-open with copies of documents
attached, somewhat loosely, therewith.
Exhibit No. 4 is the respondent's memorandum of law, filed on or about August
10, 2010, with tabs noted A through F.
Exhibit No. 5 i s the Department's motion to pretermit, filed October 18, 2010, and
containing tabs A through C.
These were all of the exhibits that were before the Court at the time the Court
entered the order granting the order to pretermit filed by the Deparment. Since that
order of November 1, 2010, the remaining documents have been filed on appeal and in
the remand before the Immigration Court.
A077-044-013 3 June 21, 2013
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Exhibit No. 6 is the respondent's brief on appeal before the Board, with tabs
noted A through G (particularly letters and emails).
K.
Exhibit No. 7 is the Board of Immigration Appeals opinion of May 7, 2012.
Exhibit No. 8 is the respondent's first brief on remand with tabs notes A through
Exhibit No. 9 is the respondent's second filing of brief on remand.
Exhibit No. 10 is the respondent's exhibits on the BIA remand to the Immigration
Court (which constitutes several filings of the same documents in an efort to get all the
records before the Immigration Court).
ANALYSIS AND STATEMENT OF THE LAW
Before the Court and upon remand by the Board, this Court is to give further
infrmation regarding the Court's granting of the motion to pretermit. The Cour would
note that it still believes that the action in taking the motion to pretermit is correct. In
reviewing this file, the C

urt notes that the respondent has had several attorneys; one
count would reference four to possibly five. One is Aruris Overes [phonetic sp.], then
Jennifer West, then Scott Pasierb, then Sandy Scott, and then current attorney, Mr. GR
Mahmood. The problem that arises in this matter is the Department's denial of the
respondent's request for adjustment of status.
Now, in documents filed by then-counsel Artuis Overes on September 9, 2005,
there is - and let me make that another exhibit because I am going to refer to it. We will
make it Exhibit No. 11; that is a September 9, 2005, letter and table of contents and
documents. Now, the Cour wants to note that the table of contents that we have
indicate page one through page 43 and as the Cour turns the next page, it picks up
with page 41 and then has that and other pages attached to the record. Be that as it
may, the Court then reviews the motion to pretermit and, noting that the file has been
A077-044-013 4 June 21, 2013
Æ T
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reconstructed and further noting that some pages are missing, but having given the
parties an opportunity to supplement, which has been extended to both sides, the filings
have now been made as complete as it would appear that they could be. The issue in
this matter is very well defined. The facts developed from the filings of the documents
before the Cour would indicate that on or about April 24, the respondent had a different
counsel apply for a labor certification which would need to be filed, to be grandfathered
under 245(i), by April 30, 2001. That application was prepared and it appears was sent
to the wrong state; it was sent to Texas when it should have been sent to Georgia. That
document reached Texas apparently, from the records in this proceeding, around April
27. But in any event, there was a letter coming back from Texas Department of Labor
indicating that that labor certification request had been received and given a date of
April 30, 2001. That will also be noted in the respondent's first brief in records that he
filed on remand with tabs noted A through K, Exhibit No. 8.
Now, in August of 2001, a letter was mailed to the respondent, to his then­
counsel, indicating that this matter had been filed in the wrong state and that that
application had been cancelled. Subsequent to this, there was apparently a proper
filing made, however, due to the fact that the Texas Department of Labor had cancelled
the labor certification request, a new priority date was given, which was after April 30,
2001, which means that the respondent cannot be grandfathered for purposes of
adjustment with the rules and regulations then and there existing. Now, the brief that
has been filed in Immigration Court and also with the Board of Immigration Appeals,
would indicate that that labor certification must be properly filed. In Exhibit No. 10, tab
C, we have an email from trial counsel's ofice to the Texas oficials regarding this labor
certification in Texas and it indicates the cancellation of that application cancelled the
Texas priority date of April 30, 2001. There is also a letter in this file from the Texas
A077-044-013
Æ = 
5 June 21, 2013
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·
oficials, indicating that the matter was cancelled and that it would need to be re-filed.
That re-filing was made and then in that particular instance, the application was denied
because of the status of the respondent as he made his application for adjustment of
status. Now, the Court finds that this matter was not properly filed with the correct
Department of Labor; that should have been Georgia instead of Texas. Further that it is
not properly filed; therefore, it has to be re-filed and Texas has cancelled that earlier
filing date and it appears under the regulations that they have the power to do that and
they have written letters that are in this record of proceeding that would substantiate
that. Tab B to Exhibit No. 6 will also reflect that. Some emphasis is given to the
respondent's counsel's argument that the Texas labor oficials should have sent it to the
Georgia labor oficials and therefore that it would be deemed filed when previously filed
and prior to or on April 30,2001. However, the 20 C.F .R. cite given by the respondent's
counsel in the brief also indicates that the local ofice would be the one for the filing and
that was not Texas; the local ofice would have been Georgia. So, in these regulations,
it would appear that the respondent has lost his priority date by filing in the wrong state.
He was represented by counsel and we do not know why counsel filed it in the wrong
state.
Be that as it may, it is clear that Texas cancelled that filing. It is clear that the
respondent attempted to make filings after that fact, but he lost his priority date,
therefore he is not grandfathered fr consideration of adjustment of status under INA
Section 245(i), as his immigrant visa petition or application for labor certification was not
properly filed and approvable when filed. See 8 C.F.R. 245.10. Properly filed is defined
as 11with respect to a qualifying application for labor cerification, that the application was
properly filed and accepted pursuant to the regulations of the Secretar of Labor, 20
C. F.R. 656.21 ". In this matter, the respondent failed to properly file his application for
A077-044-013 6 June 21, 2013
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labor certification. The matter was erroneously filed with the Texas Workfrce
Commission on April 27, 2001. Due to the backlog of cases then pending, it was not
adjudicated until August 28, 2001; instead then, it was rejected by the Texas Workforce
Commission because it was filed at the wrong location. See Exhibit 8 of the
Department's filing of Exhibit No. 5.
Therefore, the Court finds that the respondent does not have a properly filed
application for labor certification prior to April 30, 2001, and therefore he cannot be
considered grandfathered for purposes of 245(i) eligibility. Therefore, the Cour
pretermits his application, as it has previously notes, and now sets forth the exhibits that
constitute the record and also the specific tabs of those exhibits, which would reflect
that the matter was improperly filed and therefore he cannot be grandfathered under
245(i) regulations.
As to voluntary departure, the Court has no knowledge whether the respondent
has posted the voluntary departure, as was previously noted at the prior Master
Calendar hearing. That is a matter that the Board can take up at its pleasure. The
Court does not have any records in its record of proceedings to reflect whether that was
made or made within the proper five-day time period.
This matter, then, shall be recertified and sent back to the Board of Immigration
Appeals pursuant to their opinion of May 7, 2012.
June 21, 2013
Please see the next page for electronic
signature
A077-044-013 7 June 21, 2013
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.-
A077-044-013
WAYNE K. HOUSER, JR.
Immigration Judge
8


 ) )
June 21, 2013
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'
//s//
Imigration Judge WAYNE K. HOUSER, JR.
houserw on September 13, 2013 at 11:00 A GMT
A077-044-013 9 June 21, 2013
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